OPINION: Candid photos ethical dilemma in internet age

SURREPTITIOUS SNAPS: Two contributions to the controversial Women Who Eat on Tubes blog.

GOTCHA!

How do you feel about having your picture taken?

Awkward acquiescence? Belligerent bemusement? Recurring reticence?

Does it depend on circumstances such as who wants to take the photo, where you are and what you are doing?

What about concerns regarding where the photo might be distributed?

I am not talking about the places where your photo has been taken by surveillance CCTV common to shopping centres, public transport, hospitals and numerous other public and private premises.

I am not referring to selfies here. Providing you have not posted a selfie to social media, sent it to others or lost the device that holds the image, you alone can determine whether such a photo stays in your control or whether it evaporates faster than self-respect at a seafood buffet.

Ussies? The oxymoronic ‘‘group selfie’’ couldn’t survive the feigned indifference of even the most ironic clique and hence, the wretched sounding word slipped under the radar and is infiltrating everyday language.

That was an ussie with commercial design and purpose. The image – and more importantly, the product that recorded that image – was intended for global consumption. And that’s Hollywood.

But back on planet here-and-now, social media sites are teeming with photographs that have been taken without consent or knowledge.

How do you feel having your picture taken without your consent in a public space? If you are walking along the footpath and someone pulls out a camera and just snaps a frame, do you care?

Photojournalists, documentarians and amateur photographers have been attempting to capture an unstaged slice of life since cameras became available.

What if you do not want your photo taken? For no reason other than you don’t want your photo taken.

In the UK there are various concerns about social media sites whose raison d’etre is the publishing of surreptitious photos taken on the London Underground. The imaginatively titled ‘‘Women Who Eat on Tubes’’ is just that. Participants are encouraged to take photos of women eating on the underground and to nominate the TFL – the time, the food and the line – without seeking the subject’s consent.

Keeping it real. It certainly keeps embarrassment and humiliation real for those who don’t want their image on the site.

Women Who Eat On Tubes has raised a broad range of accusations from privacy advocates, feminists and those who think it’s just a bit too creepy.

The site has raised louder concerns than those aimed at ‘‘TubeCrush’’, where pictures of men whom photographers find attractive are posted to Twitter with accompanying repartee.

Both sites are beneficiaries of the Streisand effect and copycat sites are now flourishing. The Streisand effect refers to a spike in public interest where an attempt is made to ban or censor a publication and was coined after Barbra Streisand’s lawyers sent a stop notice to the 1993 California Coastal Records Project regarding the inclusion of an image of Streisand’s Malibu beach house on its website.

Of course, the Streisand effect can be seen as a useful publicity tool and one should remain sceptical about the manufacture of outrage.

Generally speaking, there is no common law right in Australia that can be implemented to prevent photography or filming of someone in a public place without his or her consent.

There are various laws aimed at indecency, offensive behaviour, filming for sexual gratification, defamation and commercial use. Yet, for the most part, taking a picture of someone without consent in a public place is more of an ethical and moral issue than a legal one.

Legal compliance and ethical anxiety make uncomfortable bedfellows. When law and ethics get into bed, law too often takes all the blankets.

In March, the Australian Law Reform Commission released a discussion paper titled Serious Invasions of Privacy in the Digital Era. This was a follow-up to last year’s Issues Paper.

The papers raise myriad issues pertinent to privacy in the digital era. It notes that many disputes about invasions of privacy are between individuals.

The commission received submissions from individuals regarding harmful, invasive and distressing disclosure of personal images.

Principal among the proposals put up for discussion is a new statutory cause of action for serious invasions of privacy.

A proposed allowance for the recovery of emotional distress damages reflects a view that embarrassment and humiliation can cause significant harm.

The ALRC will provide its final report to the Attorney-General by the end of June.

Paul Scott is a lecturer in the school of design, communication and information technology at the University of Newcastle